Europe's Choice on Conscience Protection

A new resolution before Europe's leading human rights council attacks conscience and community.

This Thursday the Council of Europe, a transnational body created in 1949 to promote democracy and human rights, will vote on a resolution and series of recommendations on conscience protection. Americans, who faced similar issues during the debate over the health care overhaul, will find much of interest in the resolution. It would create guidelines that encourage member states to force doctors to perform abortions in some circumstances and to make referrals for them in every circumstance. Drafted by the pro-abortion British parliamentarian Christine McCafferty, it is an all-out assault on conscience and community.

The central feature of the resolution is a call for enforcement against conscientious objectors who refuse to perform or make referrals for abortion. The report encourages member states to “establish effective complaint mechanisms that can address abuses of the right to conscientious objection and provide women with an effective and timely remedy.” While many European countries are woefully lacking in conscience protection, authorities have sometimes hesitated to enforce these unjust laws. This provision seeks to end that. As the European Center for Law and Justice says in its report on the proposed law, “the ‘conscience clause’ is nothing other than an official immunity from liability for refusing to participate in abortion.” While the law fails to specify how this unjust law will be enforced, doctors can be forgiven for worrying that its implementation will be far from sensitive and sympathetic.

Among the report’s many specific recommendations, the most sinister sounding may be a call for the creation of national registries of conscientious objectors in order to further what the report describes as “oversight and monitoring mechanisms.” In Norway, doctors are already required to notify hospitals of their conscientious objector status, and the hospitals in turn are required to report the names of conscientious objectors to state authorities. The goal of these mechanisms seems to be to enable a highly inappropriate and political scrutiny of doctors who have deeply held objections to procedures like abortion and euthanasia.

The new guideline further restricts conscience by requiring that doctors give timely notice of their conscientious objections. But what happens if a doctor’s view on conscience changes? What if he is serving as the sole medical provider in an under-served area? Will he be required to give up his job?

There is already discrimination against conscientious objectors in Britain, where the National Health Service has urged hospitals to ask job applicants whether or not they are conscientious objectors and to refuse to hire conscientious objectors unless there is an already present physician willing to perform acts like abortion. One’s conscientious objector status becomes a matter of administrative record that must be consulted at every step in one’s employment, from hiring, to promotion, to professional security. Conscientious objectors become last hired, first fired.

Consider a doctor who gives up his ability to practice in under-served areas and instead locates to an urban center that offers ready access to abortion. Say he also is willing to have his employment be secondary to that of all his colleagues. He is also willing to fill out the form that will enter his name in a national registry of conscientious objectors. Will he then be left alone? Though he is willing to submit to a thousand harassments, he is still required in all situations to become complicit in abortion by referring his patients to a doctor willing to perform them.

The notion that the document is motivated by egalitarianism and a concern for individual rights is undercut by its creation of two classes of conscience protection. While doctors directly performing procedures like abortion are allowed conscience protection, the document refuses to grant any protections to support staff, such as nurses and assistants, who might be asked to be involved in the procedure. The rights of doctors are grudgingly and insufficiently recognized, but the moral agency and freedom of their less powerful and well-paid colleagues is denied altogether. This means that if a patient requests abortion or euthanasia, the doctor could object and face no prosecution. But if a lower-paid nurse levied the same objection the nurse could be subject to administrative and legal penalties.

While the report preserves a charade of conscience protection for individual actors, it denies that institutions like religious hospitals have any right to refuse to perform procedures like abortion. The report claims that, "the right to freedom of thought, conscience and religion is an individual right and, therefore, institutions such as hospitals cannot claim this right." These institutions are not only the corporate expression of rights to association and free speech; they also play an important subsidiary role in providing education and medical services, often more effectively and at lower cost than public providers.

These same issues are taking on increasing importance in the United States. As the federal government becomes increasingly involved in health care, the temptation to politicize medicine and weaken longstanding conscience protections has proved hard to resist. The Patient Protection and Affordable Care Act (PPACA) passed earlier this year failed to incorporate the language of the Weldon Amendment, an annual rider to the Health and Human Services (HHS) appropriation bill that protects conscience. In its place there are scattershot partial protections. Health plans are prohibited from discriminating against institutions and individuals who have conscientious objections, but governments and entities that receive government funds are not. Similarly, the Secretary of HHS is prohibited from requiring the provision of abortion as an “essential service,” but there is no similar exclusion for physician-assisted suicide, contraception or other morally contentious issues.

As the Council of Europe votes on guidelines that would severely curtail conscience, the American Congress should move to repair the problems with the PPACA by passing a bill with comprehensive individual and institutional protections of conscience. One bipartisan bill, sponsored by Democrat Daniel Lipinski and Republican Joseph Pitts, seeks to do just that by patching the holes in PPACA’s protections for conscience. Congressmen are understandably occupied by the upcoming election, but a bill that fixes these issues should be one of the first orders of business for the new Congress, be it Democratic or Republican.